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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

----------------------------------------x
MARKETING TECHNOLOGY SOLUTIONS, INC., Plaintiff, - against MEDIZINE LLC, DANIEL BRANDT, MICHAEL ROWSOM and ETRUVIAN, INC., Defendants.
---------------------------------------~x

09 Civ. 8122 (LMM) MEMORANDUM AND ORDER

McKENNA, D. J. ,
1.

USDCSDNY DOCUMENT ELECTRONICALLY FILED DOC #: ----,._.,..--_ DATE FILED: J:11i!!ZDlfJ

In this action, plaintiff Marketing Technology Solutions, Inc. ("MTS") asserts that its former employee, defendant Brandt Inc.

(acting at times through his company,

defendant eTruvian,

("eTruvian") ), and another former employee, defendant Rowsom, have acted together a for the benefit of of defendant by, among MediZine other LLC

("MediZine"),

competitor

MTS,

things,

transferring to MediZine trade secrets of MTS and infringing MTS' copyrights. Both MTS and MediZine present health-related information on interactive websites; users can put questions to the websites, and the websi tes can put questions to the users; users' input, the programs interests, present advertising, based on the specific to

individual users'

from health care suppliers such as "So, for example, if I were to go on

pharmaceutical manufacturers.

23 APR 2Q1U

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ei ther

the

plaintiff's

website

or

MediZine's

website

and

the

question [to the user] was . . . what concerns you have, and I say I have diabetes, they might ask follow-up questions and then they present an ad that is relevant to that concern." 2009, at 11 [counsel to MediZine].)
2.

(Tr.,

Dec.

4,

This case involves three computer programs that will be referred to below. "Promotion Serving Platform Software" ("PSP") refers to software developed and used by MTS, described in paragraph 2 of its complaint. "iConnect" is a computer program, developed by

defendants Brandt and eTruvian, used by MediZine from about 2007 to about September 30, 2009, described in paragraph 8 of the

complaint.

MTS asserts ownership of PSP and iConnect (the latter

as a work made for hire by Brandt, and has registered copyrights in PSP, in MTS' name (Compl. Ex. B, Registration No. TX6-938-819, and a revision thereof, Compl. Ex. C., Registration No. TX6-938-643); MTS has not registered copyright in iConnect. "New MediZine

Software"

("NMS")

refers to software,

developed by MG LLC d/b/a (Phares Decl., allegedly,

Tranzact, used by MediZine from October 1, 2009. Ex.
0

en 4;

Ex.

C at 12.)

The iConnect program was,

developed for MediZine by defendant Brandt, at least in part while Brandt was employed by MTS. (Compl. en 6.)

2

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3.

MediZine moves for orders and II, for copyright

(i)

dismissing MTS' of PSP and

Counts I iConnect,

infringement

respectively, pursuant to Fed. R. Civ. P. 56,

(ii) dismissing MTS'

Count VII, alleging unauthorized computer access in violation of 18 u.S.C.
§

1030, pursuant to id. 12(b) (6), and (iii) dismissing all (which are alleged under

of the other claims of such complaint state law) pursuant to 28 U.S.C. MTS moves for denial
§

1367 (c) (3).1 of MediZine's Rule 56 motion

pursuant to Rule 56(f), or, in the alternative, for a continuance pursuant to Rule 56(f) (2).
4.

After reciprocal expedited discovery by MTS and MediZine, MTS' expert, Dr. Benjamin Goldberg, examined the question whether "any literal or non-literal elements of MTS's source code for its PSP software were copied into either the iConnect source code or the Tranzact source code.
u

(Goldberg Report, Oct. 26, 2009,

~

8.)2

1 There is not complete diversity in this case because both MTS and MediZine are Delaware corporations. (Compl. ':II':II 16, 17.)

2 "Source codeu refers to "a series of instructions written in a computer language such as COBOL, BASIC or FORTRAN,u Softel Inc. v. Dragon Med. & Scientific Corom's., Inc., 118 F.3d 955, 958 n.3 (2d Cir. 1997) (citing Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 698 (2d Cir. 1992)). "Once the source code has been completed, the second step is to translate or 'compile' it into object code. u Altai, 982 F.2d at 698. " 'Obj ect code' is a machine-readable binary translation of source code. u Softel, 118 F.3d at 959 n.4). "Source codeu and "object codeu are "the literal elements of computer programs. u Altai, 982 F.2d at 702. Both literal and non-literal elements of a computer program may be protected by copyright. u Id. at 701-02.

3

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MTS,

on

the

basis

of

Dr.

Goldberg's

Report,

has

identified two ways in which, it argues, First, according to Dr. Goldberg,

iConnect infringes PSP.

a file -- referred to by the

parties as "engine.jsH -- in PSP "was copied virtually wholesale into the iConnect code.
H

(Goldberg Report' 23.)

Second, "[n]on­

literal aspects of the PSP code were also copied into the iConnect code"
(id. ,

24); MTS refers to the relevant portion of the PSP
H

program as the "Campaign Ranking Code. 2009, at 41.) campaign is

(See,

~,

Tr., Dec. 4,

"Although the code that computes the ranking of each written in a different language in the iConnect

software than in the PSP software, the two codes perform the same computation result." in the same series of steps and produce the same

(Goldberg Report' 25.)
5.

MTS'

Count

I

asserts MediZine's

infringement

of MTS'

copyrights in PSP on the basis of MediZine's copying from PSP, in iConnect, of the "engine. j s
H

file

(literally)

and the Campaign

Ranking Code (non-literally). In a copyright case, as in any other, to obtain summary judgment, a party must demonstrate that "the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. H
P. 56(c).

Fed. R. Civ.

"The court

'must draw all reasonable inferences and

4

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resolve all ambiguities in favor of the non-moving party.'" Rock Ent'ment, (2d Cir. 1998) Inc. v. Carol Pub. Group, Inc.,

Castle

150 F.3d 132, 137 Inc., 861

(quoting Garza v. Marine Transp. Lines,

F.2d 23, 26 (2d Cir. 1988)). To sustain a claim of copyright infringement, a plaintiff must demonstrate first that a copyrighted work was actually copied, and second, that the copying amounted to an improper or unlawful appropriation. After proving that the copyrighted work was actually copied, a plaintiff must establish that the copying was improper or unlawful by showing that the second work bears a "substantial similarity" to protected expression in the copyrighted work. Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 69-70 (2d Cir. 1999) Cir. 1997) (quoting Repp v. Webber, 132 F.3d 882, 889 (2d

(other citations omitted)). Here, MediZine assumes, for purposes of the present

motion, that MTS has established that it has a valid copyright in PSP and that there was copying by MediZine. 11.)
6.

(Tr., Dec. 4, 2009, at

As to the claim of infringement based on the inclusion in iConnect of "engine.js," MediZine's responsive argument is that the presence of the few lines of code comprising "engine. j e" is de minimis. "To establish that the infringement of a copyright is de minimis, and therefore not actionable, the alleged infringer must demonstrate that the copying of 5
the protected material is so

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trivial 'as to fall below the quantitative threshold of substantial similarity, copying.'" (2d Cir. which is always a required element of actionable

Sandoval v. New Line Cinema Corp., 147 F.3d 215, 217 1998) (quoting Ringgold v. (2d Cir. 1997)) Black Ent' ment Televi sion,

Inc., 126 F.3d 70, 74

In Sandoval, a scene in a motion picture showed a light box with photographic transparencies (ten of which were

reproductions of the plaintiff's self-portraits) 147 F.3d at 216.

attached to it.

At approximately one hour and seventeen minutes into the movie, the light box is turned on, allowing light to pass through the non-opaque portions of the transparencies posted on the box. During the next minute and a half, the light box and Sandoval's pictures, or portions of each, are briefly visible in eleven different camera shots. The longest uninterrupted view of the light box lasts six seconds, but the box is otherwise visible, in whole or in part, for a total of approximately 35.6 seconds. The photographs never appear in focus, and except for two of the shots, are seen in the distant background, often obstructed from view by one of the actors. In these two shots, figures in the photographs are barely discernable, with one shot lasting for four seconds and the other for two seconds. Moreover, in one of the shots, after one and a half seconds, the photograph is completely obstructed by a prop in the scene. Id. The Court of Appeals concluded that the use in the motion

picture of the plaintiff's works was de minimis, so that no cause of action lay for copyright infringement. Id. at 218.

The Court of Appeals in Sandoval pointed out that the "inquiry into the substantial similarity between a copyrighted work
6

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and the allegedly infringing work must be made on a case-by-case basis, as there are no bright-line Id. at 217. rules for what constitutes

substantial similarity."

Sandoval also notes that

courts will look at "the amount of the copyrighted work that was copied," id., and further points out that, in the case of visual works, "observability of the copyrighted work in the allegedly The Second that "the

infringing work" is relevant. Circuit has also said,

Id. (citation omitted). however, be added,

it must,

quantitative analysis of two works must always occur in the shadow of their qualitative nature." Nihon, 166 F.3d at 71.

MediZine's "engine.js" argument is largely quantitative: it argues that "PSP consists of 953,612 lines of code, and iConnect contains 233,751 lines of code. are even
3

Of those, only 437 lines of code (Def. that Mem. "[t]he at code 7 in (citations engine.js

allegedly MTS'

similar." states

omitted) .)

expert

drives much of the user interface when a user is answering survey questions Report
~

concerning health and medication issues." 22; see also MTS Reply Mem. at 8.) It may be granted that the "engine.js"

(Goldberg

code

is

a

quantitatively very small part of the programs of which it is a part. At the same time, there is no substantial dispute that it a real function in at least the PSP program. The

performs

3 MediZine adds that these lines of code do not serve a function in iConnect. (Id. at 7-8.)

7

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smallness alone is not enough by itself to avoid liability. 166 F.3d at 71-72.

Nihon,

The qualitative value in the equation, on the "A de minimis

present record, however, remains an issue of fact.

defense does not apply where the qualitative value of the copying is material." Consulting, Dun
&

Bradstreet Software Servs., (3d Cir. 2002).

Inc.

v.

Grace

Inc., 307 F.3d 197, 208
7.

As to the Campaign Ranking Code, MediZine's argument is that it is merely an "algorithm" passim)
4,

(Tr.,

Dec. of

4,

2009,

at 9, wi thin

and the

or

a

"process"
§

or

"method

operation"

meaning of 17 U.S.C.

102(b).

(MediZine Mem. at 5-6.) "In of

Section 102(b) of the Copyright Act provides that no case does copyright protection for an original work

authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." 17 U.S.C.
§

102(b).

"Section 102(b) assumes the existence of a protected work -- 'an original work of authorship' -- but cautions that protection for such an original work of authorship does not extend to any unprotectible procedures, components contained therein, or of to concepts, 2

processes,

systems,

and methods

operation."

4 MTS also at times refers to the Campaign Ranking "algorithm." (Tr., Dec. 4, 2009, at 46, and passim.)

Code

as

an

8

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William

F.

Patry,

Patry

on

Copyright

§

4.30,

at

4-108

(2009)

(footnotes omitted)

The reason for excluding ideas, procedures,

processes, systems, methods of operation, concepts, principles or discoveries from copyright protection "is to avoid monopoly power being exercised in an across-the-board manner, that is, without

regard to the particular characteristics of any individual work." Id. at 4-109; see also, Attia v. Soc'y of N.Y. Hosp., 201 F.3d 50, 53-55 (2d Cir. 1999); Altai, 982 F.2d at 708; Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1252-53 (3d Cir. 1983). Section 102(b) does not use the word "algorithm," but the word has been used in copyright case law. Drosnin, algorithm protected."S 136 F.Supp.2d 276, 291 See Torah Soft Ltd. v. (S.D.N.Y. 2001) ("An

is clearly a method of operation which cannot be Nevertheless, it will be clearer to use the language

of Section 102(b) rather than the word "algorithm" in considering

S The term is also used in the patent context. "A procedure for solving a given type of mathematical problem is known as an 'algorithm.'" Gottschalk v. Benson, 409 u.s. 63, 65 (1972); Diamond v. Diehr, 450 U.S. 175, 185-86 & n.9 (1981). It is not at all clear that the identification of a component of a computer program as an "algorithm" ends the analysis. "AI though algorithms are typically perceived as individual components of a software design, they have a number of component parts which are organized into a coherent whole. Moreover, algorithms, conceptually speaking, determine the behavior of the programs that embody them. Viewed in this way, even individual algorithms seem to be among the aspects of programs that could be protected wi thin an industrial compilation framework." Samuelson, Davis, Kapor & Reichman, A Manifesto Concerning the Legal Protection of Computer Programs, 94 Colum. L. Rev. 2308, 2383 (1994) (footnotes omitted). Those authors define an "algorithm" as "'a prescribed set of well-defined, unambiguous rules or processes for the solution of a problem in a finite number of steps.'" Id. at 2321 n. 37 (quoting Webster's New World Dictionary of Computer Terms (3d ed. 1988)).

9

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whether MediZine's non-literal copying of the Campaign Ranking Code is or can be a violation of MTS' copyright in PSP. It is necessary first to understand what the Campaign Ranking Code is. Recognizing that "the value in a program lies in that means what

its behavior," Samuelson, supra, note 5 at 2323, the program does. According computes "the to MTS' in expert, the

Campaign (offers

Ranking related

Code to

order

which

campaigns

pharmaceutical products) appear on a web page -- based on a ranking function applied to each campaign," and is "virtually identical in the PSP and iConnect code." (Goldberg Report' 24.) "Although the

code that computes the ranking of each campaign is written in a different software, language in the iConnect software than in the PSP

the two codes perform the same computation in the same (Id.' 25.) The PSP

series of steps and produce the same result."

code "iterates over each campaign, computing the campaign's rank by first computing the previous day's take rate, which is the number of takes (i.e., the number of times the offer was signed up for (Id.) With a

divided by the number of views) for that campaign."

relatively small variation, the iConnect code does the same thing. (Id. , 26.) Counsel for MTS has expressed the "idea" of the

Campaign Ranking Code: The algorithm [Campaign Ranking Code] that is at issue here is the one that determines how many ads or what ads the user sees, the order in which they appear. From a business standpoint this is how MTS 10

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makes money. This is what differentiates the MTS platform from other online lead generation platforms. This is the algorithm that determines how MTS prices its services and how MTS negotiates with its clients in terms of the way in which their campaigns and their ads are going to appear. (Tr., Dec. 4, 2009, at 47.) MediZine does not show that the protectable expression claimed by MTS in the Campaign Ranking Code "was dictated by

considerations of efficiency, so as to be necessarily incidental to [the] idea; required by factors external to the program itself; or taken from the public domain and hence is nonprotectable

expression." Nor

Altai, 982 F.2d at 707. is the Campaign Ranking Code a means of giving

instructions to a computer, as was the menu command hierarchy in Lotus Development Corp. v. Borland Int'l, Inc., 49 F.3d 807 (1st

Cir. 1995), but, rather, guides the PSP's interaction with users of the website. And, significantly for purposes of the present motion,

MediZine has not shown that the idea of the Campaign Ranking Code is not only one of a number of ways to express that idea, and so copyrightable. See Apple, 714 F. 2d at 1253 (" I f other programs can

be written or created which perform the same function as an Apple's operating system program, then that program is an expression of the idea and hence copyrightable.")
8.

11

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For the reasons so far set forth, MediZine's motion for summary judgment dismissing Count I of the complaint is denied.
9.

MediZine's motion for summary judgment dismissing Count II is granted. Initially, MediZine argued that the fact that copyright in iConnect had not been registered
§

deprived

this

Court

of

jurisdiction under 17 U.S.C. which the Second Circuit, Databases Copyright

411(a)

(MediZine Mem. at 10-11),

in In re Literary Works in Electronic held to be a "jurisdictional 509 F.3d 116, 125 Inc.
v.

Litig.,

prerequisite to a copyright infringement suit." (2d Cir. Muchnick, 2007) 130 (footnote omitted).

In Reed Elsevier, however, the

s.

Ct.

1237

(2010),

Supreme
§

Court 411(a)

reversed the Second Circuit, "does not courts." implicate the (Id. at 1248.)

concluding that 17 U.S.C. jurisdiction of

subj ect-matter

federal

The Supreme Court did not conclude, on the other hand, that 17 U.S.C.
§

411(a) was to be ignored.

It recognized that that

section's "registration requirement is a precondition to filing a claim that does not restrict a federal court's subj ect-matter

jurisdiction"

(id.

at 1241),

and expressly declined to address

whether the statutory registration requirement was a "mandatory precondi tion to suit that district courts mayor should

12

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enforce

sua

sponte by dismissing copyright (Id. at 1249.)

infringement

claims

involving unregistered works."

The language of 17 U.S.C. § 411(a) is clear, MTS has not shown that it comes within noted any by of the the exceptions Court to in the Reed

registration

requirement

Supreme

Elsevier (see 130 S. Ct. at 1246), and summary judgment is granted dismissing Count 11. 6
10.

MediZine moves for dismissal, pursuant to Fed. R. Civ. P. 12(b) (6), of Count VII of the complaint, alleging the violation of 18 U.S.C.
§

1030, the Computer Fraud and Abuse Act ("CFAA").

"In deciding whether a complaint states a claim, a 'court must accept the material facts alleged in the complaint as true and construe all Phelps v. reasonable 308 inferences F.3d 180, 18 F . 3d 133 , in the plaintiff's 184 13 6 (2d Cir. (2d Ci r . 2002) favor.'" (quoting " To

Kapnolas,

Her nand e z v.

Cough 1 in ,

19 9 4 ) ) .

survi ve dismissal,

the plaintiff must provide the grounds upon 'to

which his claim rests through factual allegations sufficient raise Comm's, a right Inc. v. to relief above the speculative level.'" 98

The Shaar Fund,

Ltd.,

493 F.3d 87,

(2d Cir.

6 The Court does not act sua sponte. The parties have taken the opportunity to give their views on Reed Elsevier to the Court in writing. See Ms. Finguerra-DuCharme's letter to the Court of March 4, 2010, and Ms. Phares' letter to the Court of the same date.

13

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2007) (2007))

(quoting

Bell Atl.

Corp.

v.

Twombly,

550

u. S.

544,

555

(footnote omitted) . The CFAA provides that: "Any person who suffers damage

or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and
§

inj uncti ve

relief

or

other

equitable

relief."

18

U.S.C.

1030(g).

The statute further provides that:

"A civil action for

a violation of this section may be brought only if the conduct involves 1 of the factors set forth in subclauses (I), (IV), or (V) of subsection (c) (4) (A) (i) ." Id. (II), (III),

In its brief, MTS suggests that the complaint intends to assert a claim under 18 U.S.C. (a) (4) and as to the
§

1030 subsections factor, it

(a) (2) (C) that

and the

(c) (4) (A) (i)

claims
(1) .

conduct involved is that described in (c) (4) (A) (i) at 17-18.) 18 "[w]hoever U.S.C.
§

(MTS Mem.

1030 (a) (2) (C)

subjects a

to

liability without

intentionally

accesses

computer

authorization or exceeds authorized access,

and thereby obtains Id.
§

information from any protected computer." subjects to liability

(a)

(4)

[w]hoever knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any I-year period. 14

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A "protected computer" under the CFAA includes a computer "which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United

States that is used in a manner that affects interstate or foreign commerce
§

or

communication

of

the

United

States."

1030 (3) (2) (B) . The (c) (4) (A) (i) factor apparently relied on by MTS is,

in a civil context, period

"loss to 1 or more persons during any 1-year 18 U.S.C.
§

aggregating at least $5,000 in value."

1030 (c) (4) (A) (i) (I) . The CFAA defines both "damage" and "loss." "[T]he term of

'damage' means any impairment to the integrity or availability data, a program, a system or information." Id.
§

1030 (e) (8).

[T]he term "loss" means any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service. Id.
§

(e)

(11). The term "loss" has been construed to mean "a cost of

investigating or remedying damage to a computer, or a cost incurred because the computer's service was interrupted." Nexans Wires S.A. "[L]ost

v. Sark-USA, Inc., 319 F.Supp.2d 468, 475 (S.D.N.Y. 2004).

revenue due to lost business opportunity" does not come within the statutory definition of "loss," 15

id.

at

477,

and

"the

loss

of

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business due to defendants' eventual use of the information, rather than a loss of business because of computer impairment, was too far removed from computer damage to count toward the jurisdictional threshold." Register. com, (S.D.N.Y. Id. Inc. at v. 477 (discussing Inc., the court's holding 252 in

Verio,

126 F.Supp.2d 238, (2d Cir. 2004)).7

n.12

2000),

aff'd 356 F.3d 393

"In sum,

revenue lost because the information was used to unfairly compete after extraction from a computer does not appear to be the type of 'loss' contemplated by the statute." MediZine argues Nexans, 319 F.Supp.2d at 478. (and cannot

that MTS has not alleged

allege) that Brandt accessed MTS' computer(s) without authorization or in excess of authorization, because of the broad access Brandt had as an employee. Employment Agreement (MediZine Mem. at 13-14.) between Brandt and MTS,
~

In light of the and its broad

confidentiality section (see Complaint Ex. A,

5), in the Court's

view, Brandt's access to MTS' computer(s) exceeded his authorized use. 84 EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 581­

(1st Cir. 2001).8

7 In Register.com, Circuit Judge Fred Parker's draft dissent (the circumstances resulting in the pUblication of which are set forth at 356 F.3d at 395 n.1) states: "We agree with the (near) unanimous view that any civil action under the CFAA involving 'damage or loss,' must satisfy the $5,000 threshold." 356 F.3d at 439 (quoting 18 U.S.C. § 1030(g) and citing id. § (e) (8) (A)) (other citations omitted).
8 The Second Circuit's decision in United States v. Morris, 928 F.2d 504 (2d Cir. 1991), see EF Cultural Travel, 274 F.3d at 582 n.10, does not require a different result. Here, it is alleged that Brandt violated 18 U.S.C. § 1030(a) (4) by accessing a computer with the intent to defraud and there is no suggestion that Brandt was authorized to defraud his

16

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In MediZine

its

reply that it

brief, cannot

but be

not

in

its

initial

brief, for

argues

held vicariously liable

conduct by Brandt in violation of the CFAA. at 11-12.) "Brandt was Even if that is so -- because, an independent contractor to

(MediZine Reply Mem. as MediZine asserts, MediZine and not an

employee or agent"

(id. at 11) -- the argument fails to take into

consideration the fact that the complaint alleges that MediZine, eTruvian and Rowsom conspired with Brandt to intentionally exceed Brandt's authorized access to MTS' computer(s). In any event, reply memorandum, record. since the argument was raised only in a not decide it on the present

the Court does

*

*

*

While the Court does not conclude that MTS cannot allege a claim under the CFAA, it is clear that the present complaint does not adequately allege such a claim, in two particulars: (1) the

complaint must allege the particular provisions of the CFAA that MTS claims to have been violated, as well as the Section

1030 (c) (4) (A) (i) factor (s) which MTS claims to have been involved, wi th facts to support the statutory allegations; and (2) the

complaint must also allege with some particularity the "damage" and

employer. Morris, a criminal case under an earlier version of the CFAA, focused on whether the defendant had accessed a federal government computer without authorization not on whether he had exceeded authorization. 17

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"loss"

(as defined in the CFAA) facts showing that the

claimed to be $5,000

involved, of

with,

moreover,

threshold

Section

1030 (a) (4) is satisfied. Count VI I is dismissed. only, MTS is to submit an amended within 20 days of the date

complaint amending Count VII hereof.

11.

Since Count

I

remains

pending,

MediZine's motion

for

dismissal of the state law counts is denied.
12.

For the foregoing reasons: summary judgment dismissing Count I

(i)

defendants' motion for (ii) defendants' (iii)

is denied;

motion for summary judgment dismissing Count II is granted;

defendants' motion for dismissal of Count VII for failure to state a claim is granted, with leave to plaintiff to replead that Count within 20 days; and (iv) defendants' motion to dismiss all state law claims for lack of subject matter jurisdiction is denied. Plaintiff's motion for relief under Fed. R. Civ. P. 56(f) is denied as moot. Dated:
9

SO ORDERED. April Z-3, 2010 Lawrence M. McKenna U.S.D.J.
The parties are to complete all discovery not later than September 30, 2010. The parties are to advise the Court within 10 days of the date hereof as to what parts hereof require redaction prior to public filing.

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